Constitutional Inequities

Earlier this year, armed neighbors came to the aid of two Fairfield women who were being attacked by dogs, prompting some to argue that the situation made a good case for citizens being allowed to carry guns.

The essence of the issue of armed citizens in public may be the process by which concealed carry permits are issued -- or not issued.

California Penal Code 12050 states: "The sheriff ... upon proof that the person applying is of good moral character, that good cause exists for the issuance ... may issue to that person a license to carry a pistol ... capable of being concealed upon that person."

Let us focus on the words "good cause" and "may issue." Among the 50 states and commonwealths, California is one of only a handful issuing concealed weapons permits under a "may issue" law. More than 40 states have "shall issue" laws.

The difference is that under "may issue," the local sheriff or police chief determines what is or is not "good moral character" and "good cause" and may or may not issue a permit. The sheriff or police chief is the gatekeeper for permits.

Under "shall issue" laws, it's usually the state that sets the criteria and then either issues or denies permits, depending on whether the applicant meets the criteria. Applicants may have to take a course on the law, demonstrate the ability to handle a weapon, and undergo a background check, fingerprinting and a photo. Criteria may differ among the states, but after an applicant is vetted, he or she may receive his permit within two months. "Shall issue" law is usually an administrative process, much like testing for a driver's license. It is more objective and consistent than "may issue" law.

Some argue that the California permit law amounts to stonewalling in some jurisdictions and counties, and, in effect, denies by process not only permits but constitutional rights. The example of San Francisco comes to mind. It has a population of 824,000, but only six concealed-carry permits -- and I believe one of those is held by Sen. Dianne Feinstein.

Here is a short sample of other discrepancies among California's 58 counties: Solano County, with an estimated population of 426,000, had 147 concealed carry permits in 2007; El Dorado County, population 179,000, had 1,206; Fresno, population 931,000, had 2,727; Humboldt, population 133,000, had 1,031. And so on. (A full abstract listing the number of permits issued during a 20-year period ending in 2007 is available at the state Attorney General's Web site.)

At first glance, one might believe that urban vs. rural factors are involved. But far more significant are political and geographical factors.

Law enforcement, politicians, jurisdictions, counties and certainly citizens are split on the issue of concealed carry weapons. "Good cause" to one sheriff may be no cause to another. A credible death threat to a witness or victim may be "good cause" in one jurisdiction, but not in another.

The bottom line in issuing concealed carry permits is this: "Good" is a subjective concept. It is neither observable nor measurable. As the state statistics clearly demonstrate, the "may issue" law ensures that subjective, interpretive judgments are made by a variety of sheriff s and police chiefs.

This is not to impute or question the integrity or professionalism of any law enforcement official on any side of this issue. My point is that, if there is a failing in the issuance of concealed weapon carry permits, it is with the structure of the law itself.

One can make a case for "may issue," based on diversity of opinion or on local control, but if we want to ensure objective and impartial issuance in the state of California, we must pass a "shall issue" law and mandate equitable issuance statewide.

Is there a chance that the Democratically dominated, anti-gun California Legislature will pass a "shall issue" law any time soon? Don't hold your breath. But do keep your powder dry.